Fair Trading Act 1985 (Vic)

Version No. 021

ts	Fair Trading Act 1985
n
e	Act No. 10201/1985
m
u	Version incorporating amendments as at 1 July 1997
c
o	TABLE OF PROVISIONS

D	Section	Page
ry	PART 1—PRELIMINARY	1

ta	1.	Short title	1
n	2.	Commencement	1
e	3.	Act binds Crown	1
m	4.	Application of Act	2
ia	5.	Definitions	2
rl	6.	Acquisition as a consumer	7
7.	Acquisition, supply and re-supply	10
a	8.	Leases and licences of land etc.	11
P	9.	Loss or damage to include injury	12
d	10.	Severability	12
n

a	PART 2—UNFAIR PRACTICES	13
n	Division 1—Misleading Conduct and False Representations	13
o
ti	10A. Interpretation	13

10B. Application of provisions of Division to prescribed information

la providers 13

is 11. Misleading or deceptive conduct 16

11A. Unconscionable conduct 16

g	12.	False representations	18
e	13.	False representations etc. in relation to land	19
L	14.	False representations in relation to employment	20
n	15.	Offering gifts and prizes	21
a
ri
16.	Misleading conduct in relation to goods	21
17.	Misleading conduct in relation to services	21
to	18.	Bait advertising	21
19.	Referral selling	22
ic
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Section Page

21.	Misleading representations	23
22.	Coercion	24

ts Division 2—Pyramid Selling Schemes 24

23. Definitions 24

n	24.	Offences	26
e	25.	Offences by promoters, directors etc.	29
m	26.	Rights of recovery	29
u	27.	Power to declare certain schemes not to be pyramid selling
c	schemes	30

o	Division 3—Unsolicited Credit Cards, Goods and Services	30
D

28. Unsolicited prescribed cards 30

ry	29.	Right to payment for unsolicited goods etc.	32
ta	30.	Liability of recipient of unsolicited goods	35

n	PART 3—ENFORCEMENT AND REMEDIES	38
e
Division 1—General	38
m

ia	31.	Interpretation	38
rl	32.	Offences	38

a Division 2—Powers of County Court 41

P	33.	Definition	41
34.	Powers of Court	41
d	35.	Special powers of Court	44
n	35A.	Power of Court to prohibit payment or transfer of money or other
a	property	46

n	Division 3—General Power of Courts	49
o

ti	36.	Repealed	49
la	37.	Actions for damages	49
is	38.	Findings in proceedings to be evidence	50
39.	Conduct by directors, servants or agents	50
g	40.	Defences	52
e	41.	Other orders	54

L	41A. Appeals	57
n	Division 4—Powers of Inspectors	58
a

ri	42.	Powers of inspectors	58
43.	Facilitation of inspection	60
to
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ii

Section	Page
Division 6—Repeals and Amendments	61

46. Repeal of parts of Consumer Affairs Act 1972 61

ts	47.	Consequential amendment	62
n

e	NOTES	63
m	1. General Information	63
u	2. Table of Amendments	64
c
o	3. Explanatory Details	65
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Version No. 021

ts	Fair Trading Act 1985
n	Act No. 10201/1985
e	Version incorporating amendments as at 1 July 1997
m
u	An Act to make provision with respect to certain unfair or
c
o	undesirable trade practices, to amend the Consumer Affairs Act
D	1972 and the Ministry of Consumer Affairs Act 1973 and for

other purposes.

ry

ta	The Parliament of Victoria enacts as follows:
n
e
m	PART I—PRELIMINARY
ia
rl	1. Short title
a
P	This Act may be cited as the Fair Trading Act 1985.
d
n	2. Commencement
a
n	The several provisions of this Act shall come into
o	operation on a day or the respective days to be
ti	fixed by proclamation or successive proclamations
la	of the Governor in Council published in the
is	Government Gazette.
g
e	3. Act binds Crown
L	(1) Except where otherwise expressly provided by this
n	Act, this Act binds the Crown not only in right of
a
ri	Victoria but also, so far as the legislative power of Parliament permits, the Crown in all its other
to	capacities.
ic
V

Fair Trading Act 1985

s. 4

Act No. 10201/1985

(2) This Act applies to and in respect of the Crown in any of its capacities to the same extent as if the

ts	Crown were, in that capacity, a body corporate.
n	4. Application of Act
e	(1) Except as otherwise expressly provided in or
m	under this Act, this Act applies (notwithstanding
u
c	anything to the contrary in any other Act or law) to
o	and in respect of an acquisition or supply of goods
D	or services or a proposed acquisition or supply of goods or services—
ry	(a) if the person by or to whom the goods are or
ta	are proposed to be acquired or supplied signs
n	in Victoria a document relating to the
e	acquisition or supply or the proposed
m	acquisition or supply; or
ia
rl	(b) if that person does not so sign such a
a	document, if the goods or services are or are
P	proposed to be delivered or supplied in Victoria.
d
n	(2) This Act extends to the engaging in conduct
a	outside Victoria by bodies corporate incorporated
n	or carrying on business within Victoria or by
o	persons ordinarily resident within Victoria.
Cf. Trade	ti
la	5. Definitions
Practices Act

1974 s. 4.	is	(1) In this Act, unless the contrary intention appears—
g

e	"acquire" includes—
L	(a) in relation to goods—acquire by way of
n	purchase, exchange or taking on lease,
a
ri	or hire or on hire-purchase; and
to	(b) in relation to services—accept;
ic	"business" includes a business not carried on for
V	profit;

Fair Trading Act 1985

s. 5

Act No. 10201/1985

"commercial road vehicle" means a vehicle or trailer acquired for use principally in the	S. 5(1) def. of "commercial
road vehicle"

ts	transport of goods on public roads;	inserted by
No. 51/1987
n	s. 4(1)(a).

e	"Director" means the Director of Consumer
m	Affairs appointed for the purposes of the
u	Ministry of Consumer Affairs Act 1973;
c
o	"document" includes—
D	(a) a book, plan, paper, parchment or other
ry	material on which there is writing or
printing, or on which there are marks,
ta	symbols or perforations having a
n	meaning for persons qualified to
e	interpret them; and
m
ia	(b) a disc, tape, paper or other device from
rl	which sounds or messages are capable
a	of being reproduced;
P	"give effect to", in relation to a provision of a
d	contract, arrangement or understanding,
n	includes do an act or thing in pursuance of or
a	in accordance with or enforce or purport to
n	enforce;
o
ti	"goods" includes—
la	(a) ships, aircraft and other vehicles;
is	(b) animals, including fish;
g
e	(c) minerals, trees and crops, whether on,
L	under or attached to land or not; and
n	(d) gas and electricity;
a
ri	"inspector" means a person appointed to be an
to	inspector under the Consumer Affairs Act
ic	1972;
V	"price" includes a charge of any description;

Fair Trading Act 1985

s. 5

Act No. 10201/1985

"provision", in relation to an understanding, means any matter forming part of the

ts	understanding;
n	"send" includes deliver and "sender" has a
e	corresponding meaning;
m	"services" includes any rights (including rights in
u
c	relation to, and interests in, real or personal
o	property), benefits, privileges or facilities
D	that are, or are to be, provided, granted or conferred in trade or commerce, and without
ry	limiting the generality of the foregoing,
ta	includes the rights, benefits, privileges or
n	facilities that are, or are to be, provided,
e	granted or conferred under a contract for or
m	in relation to—
ia	(a) the performance of work (including
rl	work of a professional nature), whether
a	with or without the supply of goods;
P

(b) the provision of, or of the use or

d

n	enjoyment of facilities for, amusement,
a	entertainment, recreation or instruction;
n	or
o
ti	(c) the conferring of rights, benefits or

privileges for which remuneration is

la	payable in the form of a royalty, tribute,
is	levy or similar exaction—
g
e	but does not include rights or benefits being
L	the supply of goods or the performance of
n	work under a contract of service;
S. 5(1) def. of	a

"Special	ri	*	*	*	*	*
price"
repealed by	to
ic
V

Fair Trading Act 1985

s. 5

Act No. 10201/1985

"supply" includes—

(a) in relation to goods—supply (including

ts	re-supply) by way of sale, exchange,
n	lease, hire or hire-purchase; and
e

(b) in relation to services—provide, grant

m

u	or confer—
c
o	and "supplier" has a corresponding
D	meaning;
ry	"unsolicited goods" means goods sent to a

person without any request made by or on

ta	behalf of the person;
n
e	"unsolicited services" means services supplied to
m	a person without any request made by or on
ia
rl
behalf of the person.

(2) In this Act—

a	(a) a reference to engaging in conduct shall be
P	read as a reference to doing or refusing to do
d	any act, including the making of, or the
n
a	giving effect to a provision of, a contract or arrangement, the arriving at, or the giving
n	effect to a provision of, an understanding or
o
ti	the requiring of the giving of, or the giving
la	of, a covenant;
is	(b) a reference to conduct, when that expression
g	is used as a noun otherwise than as
e	mentioned in paragraph (a), shall be read as a
L	reference to the doing of or the refusing to do
n	any act, including the making of, or the
a
ri	giving effect to a provision of, a contract or
arrangement, the arriving at, or the giving
to	effect to a provision of, an understanding or
ic	the requiring of the giving of, or the giving
V	of, a covenant;

Fair Trading Act 1985

s. 5

Act No. 10201/1985

(c) a reference to refusing to do an act includes a reference to—

ts	(i) refraining (otherwise than
n	inadvertently) from doing that act; or
e	(ii) making it known that that act will not
m	be done; and
u
c	(d) a reference to a person offering to do an act,
o	or to do an act on a particular condition,
D	includes a reference to the person making it
ry	known that the person will accept applications, offers or proposals for the
ta	person to do that act or to do that act on that
n	condition, as the case may be.
e

(3) Where a provision of this Act is expressed to

m

ia	render a provision of a contract, or to render a
rl	covenant, unenforceable if the provision of a
a	contract or the covenant has or is likely to have a
P	particular effect, that provision of this Act applies in relation to the provision of the contract or the
d
n	covenant at any time when the provision of the
a	contract or the covenant has or is likely to have
n	that effect notwithstanding that—
o
ti	(a) at an earlier time the provision of the contract

or the covenant did not have that effect or was

la	not regarded as likely to have that effect; or
is	(b) the provision of the contract or the covenant
g
e	will not or may not have that effect at a later
L	time.
n	(4) For the purposes of this Act, a reference to trade
a
ri	or commerce includes a reference to a business
not carried on for profit.

S. 5(5) to (5) In proceedings under this Act, it shall be

ic	presumed, unless the contrary is established, that a
V	body corporate is not, or was not at a particular time—

Fair Trading Act 1985

s. 6

Act No. 10201/1985

(a) related to another body corporate; or

(b) a subsidiary of another body corporate. (6) In this Act a reference to a Commonwealth Act is

ts	S. 5(6)
n	inserted by

a reference— No. 51/1987

e s. 4(2).

(a) if that Act has been amended, to that Act as

m

u	amended and in force for the time being; and (b) if that Act has been re-enacted or re-made
c
o	(with or without modification), to that Act as
D	re-enacted or re-made for the time being; and
ry	(c) if that Act has been re-enacted or re-made
ta	(with or without modification) and
n	subsequently amended, to that Act as re-
e	enacted or re-made and subsequently
m	amended and in force for the time being.
ia	Cf. Trade
rl	6. Acquisition as a consumer

Practices Act

1974 s. 4B.

a	(1) For the purposes of this Act, unless the contrary
P	intention appears—
d	(a) a person shall be taken to have acquired
n	particular goods as a consumer if, and only
a	if—
n
o	(i) the price of the goods did not exceed
ti	the prescribed amount; or
la	S. 6(1)(a)(ii)

(ii) where that price exceeded the

is amended by

prescribed amount—the goods were of No. 51/1987

g	a kind ordinarily acquired for personal,	s. 5(1).
e	domestic or household use or
L	consumption or the goods consisted of
n	a commercial road vehicle—
a

ri	and the person did not acquire the goods, or
to	hold out that the person was acquiring the
ic	goods, for the purpose of re-supply or for the
purpose of using them up or transforming
V	them, in trade or commerce, in the course of

Fair Trading Act 1985

s. 6

Act No. 10201/1985

a process of production or manufacture or of

repairing or treating other goods or fixtures

ts	on land; and
n	(b) a person shall be taken to have acquired
e	particular services as a consumer if, and only
m	if—
u	(i) the price of the services did not exceed
c
o	the prescribed amount; or
D	(ii) where that price exceeded the
ry	prescribed amount—the services were of a kind ordinarily acquired for
ta	personal, domestic or household use or
n	consumption.
e

(2) For the purposes of sub-section (1)—

m

S. 6(2)(a)	ia	(a) the prescribed amount is $40 000 or, if a
amended by	rl

No. 51/1987	greater amount is prescribed for the purposes
s. 5(2).	a	of this paragraph, that greater amount;
P

(b) subject to paragraph (c), the price of goods or

d	services purchased by a person shall be taken
n
a	to have been the amount paid or payable by the person for the goods or services;
n
o	(c) where a person purchased goods or services
ti	together with other property or services, or
la	with both other property and services and a
is	specified price was not allocated to the goods
g	or services in the contract under which they
e	were purchased, the price of the goods or
L	services shall be taken to have been—
n	(i) the price at which, at the time of the
a
ri	acquisition, the person could have
to	purchased from the supplier the goods
or services without the other property or
ic	services;
V

Fair Trading Act 1985

s. 6

Act No. 10201/1985

(ii) if, at the time of the acquisition, the goods or services were not available for

ts	purchase from the supplier except
together with the other property or
n
e	services but, at that time, goods or services of the kind acquired were
m	available for purchase from another
u
c	supplier without other property or
o	services—the lowest price at which the
D	person could, at that time, reasonably have purchased goods or services of
ry	that kind from another supplier; or
ta	(iii) if, at the time of the acquisition, goods
n
e	or services of the kind acquired were not available for purchase from any
m
ia	supplier except together with other
rl	property or services—the value of the
goods or services at that time;
a
P	(d) where a person acquired goods or services
d	otherwise than by way of purchase, the price
n	of the goods or services shall be taken to
a	have been—
n	(i) the price at which, at the time of the
o
ti	acquisition, the person could have purchased the goods or services from
la	the supplier;
is	(ii) if, at the time of the acquisition, the
g
e	goods or services were not available for
L	purchase from the supplier or were so
n	available only together with other
a	property or services but, at that time,
ri	goods or services of the kind acquired
to	were available for purchase from
ic	another supplier—the lowest price at
V	which the person could, at that time,

Fair Trading Act 1985

s. 7

Act No. 10201/1985

reasonably have purchased goods or

services of that kind from another

ts	supplier; or
n	(iii) if goods or services of the kind acquired
e	were not available, at the time of the
m	acquisition, for purchase from any
u	supplier or were not so available except
c	together with other property or
o	services—the value of the goods or
D	services at that time; and
ry	(e) without limiting by implication the meaning
ta	of the expression "services" in section 5(1),
n	the obtaining of credit by a person in
e	connexion with the acquisition of goods or
m	services shall be deemed to be the
ia	acquisition of a service and any amount by
rl	which the amount paid or payable for the
a	goods or services is increased by reason of so
P	obtaining credit shall be deemed to be paid
d	or payable for that service.
n	(3) Where it is alleged in any proceeding under this
a	Act or in any other proceeding in respect of a
n	matter arising under this Act that a person was a
o
ti	consumer in relation to particular goods or services, it shall be presumed, unless the contrary
la	is established, that the person was a consumer in
is	relation to those goods or services.
Cf. Trade	g

Practices Act	e	7. Acquisition, supply and re-supply
1974 s. 4C.	L	In this Act, unless the contrary intention appears—
n

a	(a) a reference to the acquisition of goods
ri	includes a reference to the acquisition of
to	property in, or rights in relation to, goods in
ic	pursuance of a supply of the goods;
V

Fair Trading Act 1985

s. 8

Act No. 10201/1985

(b) a reference to the supply or acquisition of

goods or services includes a reference to

ts	agreeing to supply or acquire goods or
n	services;
e	(c) a reference to the supply or acquisition of
m	goods includes a reference to the supply or
u
c	acquisition of goods together with other
o	property or services, or both;
D	(d) a reference to the supply or acquisition of
ry	services includes a reference to the supply or acquisition of services together with property
ta	or other services, or both; and
n
e	(e) a reference to the re-supply of goods
m	acquired from a person includes a reference
ia
rl
to—

(i) a supply of the goods to another person

a	in an altered form or condition; and
P

(ii) a supply to another person of goods in

d	which the first-mentioned goods have
n
a	been incorporated.

Cf. Trade

n 8. Leases and licences of land etc.

Practices Act

o

1974 s. 4H.

ti	In this Act—
la	(a) a reference to a contract shall be construed as
is	including a reference to a lease of, or a
g	licence in respect of, land or a building or
e	part of a building and shall be so construed
L	notwithstanding the express references in
n	this Act to such leases or licences;
a
ri	(b) a reference to making or entering into a contract, in relation to such a lease or
to	licence, shall be read as a reference to
ic	granting or taking the lease or licence; and
V

Fair Trading Act 1985

s. 9

Act No. 10201/1985

(c) a reference to a party to a contract, in relation to such a lease or licence, shall be read as

ts	including a reference to any person bound
by, or entitled to the benefit of, any provision
n
e	contained in the lease or licence.
Cf. Trade

9. Loss or damage to include injury

Practices Act	m
1974 s. 4K. u
c	In this Act—
o	(a) a reference to loss or damage, other than a
D	reference to the amount of any loss or
ry	damage, includes a reference to injury; and (b) a reference to the amount of any loss or
ta
n	damage includes a reference to damages in
e	respect of an injury.

Cf. Trade	m	10. Severability
Practices Act
1974 s. 4L.	ia

rl	If the making of a contract after the
a	commencement of this section contravenes this
P	Act by reason of the inclusion of a particular provision in the contract, then, subject to any
d	order made under section 35, nothing in this Act
n
a	affects the validity or enforceability of the contract otherwise than in relation to that provision in so
n
o	far as that provision is severable.
ti	_______________
la
is
g
e
L
n
a
ri
to
ic
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Fair Trading Act 1985

s. 10A

Act No. 10201/1985

PART II—UNFAIR PRACTICES

ts	Division 1—Misleading Conduct and False Representations
n
e	Cf. Trade

10A. Interpretation

Practices Act

m 1974 s. 51A.

u	(1) For the purposes of this Division, where a person	S. 10A
c	makes a representation with respect to any future	inserted by
o	No. 51/1987
matter (including the doing of, or the refusing to	s. 6.
D	do, any act) and the person does not have
ry	reasonable grounds for making the representation,

ta	the representation shall be taken to be misleading. (2) For the purposes of the application of sub-section
n
e	(1) in relation to a proceeding concerning a
m	representation made by a person with respect to
ia	any future matter, the person shall, unless the
rl	person adduces evidence to the contrary, be
a	deemed not to have had reasonable grounds for
P	making the representation.
d	(3) Sub-section (1) shall be deemed not to limit by
n	implication the meaning of a reference in this
a	Division to a misleading representation, a
n	representation that is misleading in a material
o
ti	particular or conduct that is misleading or is likely
or liable to mislead.
la	Cf. Trade
is	10B. Application of provisions of Division to prescribed

Practices Act

information providers 1974 s. 65A.

g S. 10B

e	(1) Nothing in section 11, 12, 13, 16, 17 or 21 applies to a prescribed publication of matter by a	inserted by
L	No. 51/1987
s. 6.

n	prescribed information provider, other than—
a
ri	(a) a publication of matter in connection with— (i) the supply or possible supply of goods
to
ic	or services; or
V	(ii) the sale or grant, or possible sale or grant, of interests in land; or
Fair Trading Act 1985
s. 10B

Act No. 10201/1985

(iii) the promotion by any means of the supply or use of goods or services; or

ts	(iv) the promotion by any means of the sale
n	or grant of interests in land—
e	where—
m
u	(v) the goods or services were relevant
c	goods or services, or the interests in
o	land were relevant interests in land, as
D	the case may be, in relation to the
ry	prescribed information provider; or (vi) the publication was made on behalf of,
ta
n	or pursuant to a contract, arrangement
e	or understanding with—
m	(A) a person who supplies goods or
ia	services of that kind, or who sells
rl	or grants interests in land, being
a	interests of that kind; or
P

(B) a body corporate that is related to

d	a body corporate that supplies
n
a	goods or services of that kind, or that sells or grants interests in
n
o	land, being interests of that kind;
ti	or
la	(b) a publication of an advertisement.
is	(2) For the purposes of this section, a publication by a
g
e	prescribed information provider is a prescribed
L	publication if—
n	(a) in any case—the publication was made by
a	the prescribed information provider in the
ri	course of carrying on a business of providing
to	information; or
ic	(b) in the case of a person who is a prescribed
V	information provider by virtue of paragraph (a), (b) or (c) of the definition of "prescribed

Fair Trading Act 1985

s. 10B

Act No. 10201/1985

information provider" in sub-section (3)

(whether or not the person is also a

ts	prescribed information provider by virtue of
another operation of that definition)—the
n
e	publication was by way of a radio or television broadcast by the prescribed
m	information provider.
u
c	(3) In this section—
o
D	"consortium" has the same meaning as that expression has in Part IIIB of the
ry	Broadcasting and Television Act 1942 of the
ta	Commonwealth;
n	"prescribed information provider" means a
e	person who carries on a business of
m	providing information and, without limiting
ia
rl	the generality of the foregoing, includes—
a	(a) a person to whom, or each of the
P	members of a consortium to which, a
d	licence has been granted under Part IIIB
n	of the Broadcasting and Television Act
a	1942 of the Commonwealth; and
n	(b) the Australian Broadcasting
o
ti	Corporation; and
la	(c) the Special Broadcasting Service;
is	"relevant goods or services", in relation to a
g	prescribed information provider, means
e	goods or services of a kind supplied by the
L	prescribed information provider or, where
n	the prescribed information provider is a body
a
ri	corporate, by a body corporate that is related
to the prescribed information provider;
to	"relevant interests in land", in relation to a
ic	prescribed information provider, means
V	interests in land, being interests of a kind sold or granted by the prescribed information

Fair Trading Act 1985

s. 11

Act No. 10201/1985

provider or, where the prescribed

information provider is a body corporate, by

ts	a body corporate that is related to the
prescribed information provider.
n
e	(4) In this section, the question whether a body
m	corporate is related to another body corporate shall
u	be determined in accordance with the Companies
c	(Victoria) Code.
Cf. Trade	o

11. Misleading or deceptive conduct

Practices Act	D
1974 s. 52.
ry	(1) A person shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is
ta	likely to mislead or deceive.
n
e	(2) Nothing in the succeeding provisions of this Part
m	shall be taken as limiting by implication the
ia	generality of sub-section (1).

Cf. Trade	rl	11A. Unconscionable conduct
Practices Act
1974 s. 52A.	a

(1) A person shall not, in trade or commerce, in

S. 11A	P
inserted by connection with the supply or possible supply of
No. 51/1987 d goods or services to another person (in this section
s. 7. n
a	referred to as the "consumer"), engage in conduct that is, in all the circumstances, unconscionable.
n
o	(2) Without in any way limiting the matters to which
ti	a court may have regard for the purpose of
la	determining whether a person has contravened
is	sub-section (1) in connection with the supply or
g	possible supply of goods or services to a
e	consumer, a court may have regard to—
L

(a) the relative strengths of the bargaining

n

a	positions of the person and the consumer;
ri	and
to	(b) whether, as a result of conduct engaged in by
ic	the person, the consumer was required to
V	comply with conditions that were not

Fair Trading Act 1985

s. 11A

Act No. 10201/1985

reasonably necessary for the protection of the

legitimate interests of the person; and

ts	(c) whether the consumer was able to understand
n	any documents relating to the supply or
e	possible supply of the goods or services; and
m	(d) whether any undue influence or pressure was
u
c	exerted on, or any unfair tactics were used
o	against, the consumer or a person acting on
D	behalf of the consumer by the person or a person acting on behalf of the person in
ry	relation to the supply or possible supply of
ta	the goods or services; and
n	(e) the amount for which, and the circumstances
e	under which, the consumer could have
m	acquired identical or equivalent goods or
ia
rl	services from another person.
a	(3) For the purposes of this section a person shall not
P	be taken to engage in unconscionable conduct in connection with the supply or possible supply of
d
n	goods or services to a consumer by reason only
a	that the person institutes legal proceedings in
n	relation to that supply or possible supply or refers
o	a dispute or claim in relation to that supply or
ti	possible supply to arbitration.
la	(4) For the purpose of determining whether a person
is	has contravened sub-section (1) in connection
g	with the supply or possible supply of goods or
e	services to a consumer—
L

(a) a court shall not have regard to any

n

a	circumstances that were not reasonably
ri	forseeable at the time of the alleged
to	contravention; and
ic	(b) a court may have regard to conduct engaged
V	in, or circumstances existing, before the commencement of this section.

Fair Trading Act 1985

s. 12

Act No. 10201/1985

(5) A reference in this section to goods or services is a reference to goods or services of a kind ordinarily

ts	acquired for personal, domestic or household useor consumption.
n
e	(6) A reference in this section to the supply or
m	possible supply of goods does not include a
u	reference to the supply or possible supply of goods
c	for the purpose of re-supply or for the purpose of
o	using them up or transforming them in trade or
D	commerce.

Cf. Trade	ry	12. False representations
Practices Act
1974 s. 53.	ta	A person shall not, in trade or commerce, in
n	connexion with the supply or possible supply of
e	goods or services or in connexion with the
m	promotion by any means of the supply or use of
ia
rl	goods or services—

a	(a) falsely represent that goods are of a
P	particular standard, quality, grade, composition, style or model or have had a
d
n	particular history or particular previous use; (b) falsely represent that services are of a
a
n	particular standard, quality or grade;
o
ti	(c) falsely represent that goods are new;
S. 12(ca)	la	(ca) falsely represent that a particular person has
inserted by
is
No. 51/1987	agreed to acquire goods or services;
s. 8(a).	g
e	(d) represent that goods or services have a
L	sponsorship, approval, performance
n	characteristics, accessories, uses or benefits
a
ri	they do not have;

(e) represent that the person has a sponsorship,

to	approval or affiliation that the person does
ic	not have;
V

Fair Trading Act 1985

s. 13

Act No. 10201/1985

(f) make a false or misleading representation with respect to the price of goods or services;	S. 12(f)
amended by No. 51/1987

ts	s. 8(c).
n	S. 12(fa)

e	(fa) make a false or misleading representation concerning the availability of facilities for	inserted by
No. 51/1987

s. 8(b).

m the repair of goods or of spare parts for

u

c	goods;
o	S. 12(fb)

(fb) make a false or misleading representation concerning the place of origin of goods; inserted by

D	No. 51/1987
ry	s. 8(b).
S. 12(g)

ta	(g) make a false or misleading representation concerning the need for any goods or	amended by
No. 51/1987
n	s. 8(c).

e services;

S. 12(h)

m (h) make a false or misleading representation

amended by

ia	concerning the existence, exclusion or effect	No. 51/1987
rl	of any condition, warranty, guarantee, right	s. 8(c).
a	or remedy; or
P	S. 12(i)

(i) make a representation that is false, misleading or deceptive in any material amended by

d No. 51/1987

n	particular.	s. 8(c).
a
n	Cf. Trade

13. False representations etc. in relation to land

o	Practices Act
ti	1974 s. 53A.

(1) A person shall not, in trade or commerce, in

la	connexion with the sale or grant, or the possible
is	sale or grant, of an interest in land or in connexion
g	with the promotion by any means of the sale or
e	grant of an interest in land—
L	(a) represent that the person has a sponsorship,
n	approval or affiliation that the person does
a
ri	not have;

to (b) make a false or misleading representation S. 13(1)(b)
amended by

ic	concerning the nature of the interest in the
land, the price payable for the land, the
V	location of the land, the characteristics of the

Fair Trading Act 1985

s. 14

Act No. 10201/1985

land, the use to which the land is capable of

being put or may lawfully be put or the

ts	existence or availability of facilities
associated with the land; or
n
e	(c) offer gifts, prizes or other free items with the
m	intention of not providing them or of not
u	providing them as offered.

S. 13(2)	c	(2) A person shall not use physical force or undue harassment or coercion in connection with the sale
substituted by	o
No. 51/1987	D

s. 9(2).	or grant, or the possible sale or grant, of an interest
ry	in land or the payment for an interest in land.
ta	(3) Nothing in this section shall be taken as implying
n	that other provisions of this Division do not apply
e	in relation to the supply or acquisition, or the
m	possible supply or acquisition, of interests in land.
ia
rl	(4) In this section, "interest", in relation to land,
a	means—
P	(a) a legal or equitable estate or interest in the
d	land;
n
a	(b) a right of occupancy of the land, or of a building or part of a building erected on the
n
o	land, arising by virtue of the holding of
ti	shares, or by virtue of a contract to purchase
la	shares, in an incorporated company that
is	owns the land or building; or
g	(c) a right, power or privilege over, or in
e	connexion with, the land.
Cf. Trade	L

14. False representations in relation to employment

Practices Act

n

1974 s. 53B. a A person shall not, in relation to employment that

S. 14	ri
amended by	is to be, or may be, offered by the person or by
No. 51/1987	to
s. 10.	another person, engage in conduct that is liable to

ic

mislead persons seeking the employment as to the

V

availability, nature, terms or conditions of, or any
other matter relating to, the employment.

Fair Trading Act 1985

s. 15

Act No. 10201/1985

15. Offering gifts and prizes Cf. Trade
Practices Act

A person shall not, in trade or commerce, in 1974 s. 54.

ts	connexion with the supply or possible supply of
n	goods or services or in connexion with the
e	promotion by any means of the supply or use of
m	goods or services, offer gifts, prizes or other free
u	items with the intention of not providing them, or
c	of not providing them as offered.
o	Cf. Trade

16. Misleading conduct in relation to goods

D	Practices Act 1974 s. 55.
ry	A person shall not, in trade or commerce, engage in conduct that is liable to mislead the public as to
ta	the nature, the manufacturing process, the
n	characteristics, the suitability for their purpose or
e	the quantity of any goods.
m	Cf. Trade
ia	17. Misleading conduct in relation to services

Practices Act

rl 1974 s. 55A.

A person shall not, in trade or commerce, engage

a	in conduct that is liable to mislead the public as to
P	the nature, the characteristics, the suitablity for
d	their purpose or the quantity of any services.
n	Cf. Trade
a	18. Bait advertising

Practices Act

1974 s. 56.

n
o

ti	(1) A person shall not, in trade or commerce,	S. 18(1) amended by
la	advertise for supply at a specified price, goods or	No. 51/1987
services if there are reasonable grounds, of which	s. 11(1).
is	the person is aware or ought reasonably to be
g
e	aware, for believing that the person will not be
L	able to offer for supply those goods or services at that price for a period that is, and in quantities that
n
a	are, reasonable having regard to the nature of the
ri	market in which the person carries on business
to	and the nature of the advertisement.

ic	(2) Where a person has, in trade or commerce,
V	advertised goods or services for supply at a specified price that person shall offer such goods

Fair Trading Act 1985

s. 19

Act No. 10201/1985

or services for supply at that price for a period that

is, and in quantities that are, reasonable having

ts	regard to the nature of the market in which theperson carries on business and the nature of the
n
e	advertisement.
m	(3) It is a defence to a prosecution under this section
u	if it is established that the person—
c
o	(a) offered to supply, or to procure another
D	person to supply, goods or services of the kind advertised to the customer within a
ry	reasonable time, in a reasonable quantity and
ta	at the advertised price; or
n	(b) offered to supply immediately, or to procure
e	another person to supply within a reasonable
m	time, equivalent goods or services to the
ia	customer in a reasonable quantity and at the
rl	price at which the first-mentioned goods or
a	services were advertised—
P

and, in either case, where the offer was accepted

d

n	by the customer, the person has so supplied, or
a	procured another person to supply, goods or
n	services.

Cf. Trade	o	19. Referral selling
Practices Act	ti
1974 s. 57.

la	A person shall not, in trade or commerce, induce a
is	consumer to acquire goods or services by
representing that the consumer will, after the
g
e	contract for the acquisition of the goods or the
L	services is made, receive a rebate, commission or
n	other benefit in return for giving the person the
a	names of prospective customers or otherwise
ri	assisting the person to supply goods or services to
to	other consumers, if receipt of the rebate,
ic	commission or other benefit is contingent on an
event occurring after that contract is made.
V

Fair Trading Act 1985

s. 20

Act No. 10201/1985

20. Accepting payment without intending or being able to Cf. Trade

1

supply as ordered? Practices Act
1974 s. 58.

ts	A person shall not, in trade or commerce, accept	S. 20 substituted by
n	payment or other consideration for goods or	No. 51/1987
e	services where, at the time of the acceptance—	s. 12(1).

m	(a) the person intends—
u
c	(i) not to supply the goods or services; or
o	(ii) to supply goods or services materially
D	different from the goods or services in
ry	respect of which the payment or other
ta	consideration is accepted; or
n	(b) there are reasonable grounds, of which the
e	person is aware or ought reasonably to be
m	aware, for believing that the person will not
ia	be able to supply the goods or services
rl	within the period specified by the person or,
a	if no period is specified, within a reasonable
P	time.
d	Cf. Trade

21. Misleading representations

n	Practices Act
a	1974 s. 59.
S. 21(1)
n	(1) A person shall not, in trade or commerce, make a

amended by

o	representation that is false or misleading in a	No. 51/1987
ti	material particular concerning the profitability or	s. 13(a)(i)(ii).
la	risk or any other material aspect of any business
is	activity that the person has represented as one that
g	can be, or can be to a considerable extent, carried
e	on at or from a person's place of residence.
L	S. 21(2)

(2) Where a person, in trade or commerce, invites,

n amended by

a	whether by advertisement or otherwise, persons to	No. 51/1987
ri	engage or participate, or to offer or to apply to	s. 13(b)(i)–(iii).
to	engage or participate, in a business activity
requiring the performance by the persons
ic	concerned of work, or the investment of moneys
V	by the persons concerned and the performance by those persons of work associated with the

Fair Trading Act 1985

s. 22

Act No. 10201/1985

investment, the first-mentioned person shall not make, with respect to the profitability or risk or

ts	any other material aspect of the business activity, a
representation that is false or misleading in a
n
e	material particular.
Cf. Trade

22. Coercion

Practices Act

m

1974 s. 60. u A person shall not use physical force or undue

S. 22	c
amended by	harassment or coercion in connexion with the
No. 51/1987	o

supply or possible supply of goods or services to a

s. 14. D

consumer or the payment for goods or services by

ry	a consumer.
ta
n	Division 2—Pyramid Selling Schemes
Cf. Consumer	e

23. Definitions

Affairs Act	m
1972 s. 32A. ia (1) In this Division, unless inconsistent with the
rl	context or subject-matter—
a	"participant" in relation to a trading scheme or a
P	pyramid selling scheme means—
d
n	(a) a person, not being a promoter, who
a	participates in the scheme;
n	(b) where two or more persons, not
o
ti	together being a promoter, together
participate in the scheme, each of those
la	persons; or
is	(c) two or more persons, not together being
g
e	a promoter, who together participate in
L	the scheme;
n	"promoter" in relation to a trading scheme or a
a
ri	pyramid selling scheme means—
to	(a) a person who promotes the scheme;
ic	(b) where two or more persons together
V	promote the scheme, each of those persons; or

Fair Trading Act 1985

s. 23

Act No. 10201/1985

(c) two or more persons who together promote the scheme;

ts	"pyramid selling scheme" means a trading
n	scheme under which—
e	(a) goods or services are or are to be
m	provided by a promoter of the trading
u
c	scheme;
o	(b) goods or services provided or to be
D	provided by a promoter of the trading
ry	scheme are or are to be provided by a participant in the trading scheme
ta	(whether or not as servant or agent of a
n	promoter) to or for other persons; and
e

(c) the prospect is held out to a participant

m

ia	in the trading scheme (whether or not
rl	so as to confer a legally enforceable
a	right) of receiving payments or other
P	benefits in respect of—
d	(i) the introduction whether or not by
n	the promoter of other persons who
a	become participants in the trading
n	scheme;
o
ti	(ii) the promotion, transfer or other
la	change of status of participants in
is	the trading scheme;
g	(iii) the provision of training facilities or
e	other services for other participants
L	in the trading scheme; or
n	(iv) transactions effected by other
a
ri	participants in the trading scheme
to	under which goods or services areor are to be provided to or for
ic	other persons;
V

Fair Trading Act 1985

s. 24

Act No. 10201/1985

"trading scheme" includes arrangements whether

or not recorded in writing made in connexion

ts	with the carrying on of a business.
n	(2) In this Division a reference to the provision of
e	goods or services by a person includes a reference
m	to the provision of goods or services under an
u	arrangement to which that person is a party.
c
o	(3) For the purposes of this Division—
D	(a) a person is not and two or more persons
ry	together are not a participant in a trading scheme or pyramid selling scheme by reason
ta	only that that person has or those persons
n	have purchased goods or services from a
e	promoter of or participant in the scheme; and
m
ia	(b) the purchase or proposed purchase of goods
rl	or services from a promoter of or participant
a	in a pyramid selling scheme does not
P	constitute participation or proposed
d	participation in the scheme.

Cf. Consumer	n	24. Offences
Affairs Act
1972 s. 32B.	a

(1) A person shall not—

n

o	(a) promote a pyramid selling scheme;
ti
la	(b) grant or purport to grant to another person a

right (whether or not legally enforceable) to

is	participate in a pyramid selling scheme;
g
e	(c) offer another person a right (whether or not
L	legally enforceable) to participate in a
n	pyramid selling scheme; or
a
ri
to
ic
V

Fair Trading Act 1985

s. 24

Act No. 10201/1985

(d) invite or induce another person to participate

or to seek to participate in a pyramid selling

ts	scheme—
n	whether the promotion, grant, offer, invitation or
e	inducement is made by the person, by an agent or
m	as an agent of another person.
u	(2) Where a person participating or proposing to
c
o	participate in a pyramid selling scheme—
D	(a) makes a payment to or for the benefit of a
ry	promoter of or participant in the scheme; and (b) made or was induced to make that payment
ta
n	by reason of a prospect being held out to that
e	person (whether or not as a legally
m	enforceable right) of receiving payments or
ia	other benefits in respect of the introduction
rl	(whether or not by that person) of other
a	persons who become participants in the
P	scheme—
d	a person to whom or for whose benefits that
n	payment or any part of that payment is made is
a	guilty of an offence.
n	(3) A promoter of or a participant in a pyramid selling
o
ti	scheme who by holding out to another person a
la	prospect (whether or not as a legally enforceable
is	right) of receiving payments or other benefits inrespect of the introduction (whether or not by
g
e	that person) of other persons who become
L	participants in the scheme, attempts to induce that
n	person—
a
ri	(a) if the person is a participant in the scheme, to

make a payment to or for the benefit of a

to	promoter of or another participant in the
ic	scheme; or
V	(b) if the person is not a participant in the scheme, to become a participant in the

Fair Trading Act 1985

s. 24

Act No. 10201/1985

scheme and to make a payment to or for the

benefit of a promoter of or another

ts	participant in the scheme—
n	is guilty of an offence.
e	(4) A person shall not lend money or agree to lend
m	money to or on account of or on behalf of or at the
u
c	request of another person if the first-mentioned
o	person knows or ought on reasonable grounds to
D	know that the money or part of the money is or is to be or may be used for or in connexion with the
ry	participation or proposed participation by a person
ta	in a pyramid selling scheme.
n	(5) For the purposes of sub-section (2) or (3), where a
e	prospect referred to in sub-section (2) or (3) is
m	held out, it is an inducement or an attempt to
ia	induce notwithstanding that the prospect did not
rl	or would not have constituted the whole of the
a	inducement if the prospect constituted or would
P	have constituted a substantial part of the
d	inducement.
n
a	(6) In sub-section (4) "lend" includes advance,
n	discount and forbear to require payment.
o
ti	(7) It is a defence to a prosecution of a person for an

offence under this section if the person proves

la	that, in respect of the pyramid selling scheme to
is	which the prosecution relates, all or a substantial
g	number of transactions or negotiations for the
e	provision of goods or services to other persons
L	under the scheme were or were to be effected or
n	took place or were to take place at the place of
a
ri	business of a promoter of the scheme or of the
to	participant providing the goods or services.
ic
V

Fair Trading Act 1985

s. 25

Act No. 10201/1985

25. Offences by promoters, directors etc. Cf. Consumer
Affairs Act

(1) Where an offence against this Division in relation 1972 s. 32C.

ts	to a pyramid selling scheme is committed by a
n	person who is a promoter of the pyramid selling
e	scheme, any other person who is a promoter of
m	that scheme is guilty of an offence against this
u	Division punishable as the first-mentioned offence
c	is punishable.
o

(2) Where an offence against this Division is committed by a body corporate and the offence is

D

ry	committed with the consent or connivance of or
ta	facilitated by neglect on the part of a director or
n	officer of the body corporate, the director or
e	officer is guilty of an offence.
m	(3) In sub-section (2) "officer" in relation to a body
ia	corporate has the same meaning as it has in
rl	relation to a corporation in the Companies
a	(Victoria) Code.
P	Cf. Consumer

26. Rights of recovery

d	Affairs Act
n	1972 s. 32D.

(1) A person who is or has been a promoter of or

a	participant in a pyramid selling scheme is liable to
n	a person who, as a participant or prospective
o
ti	participant in that scheme, made a payment to the
first-mentioned person for the amount of that
la	payment.
is	(2) An action against a person for the recovery of an
g
e	amount referred to in sub-section (1) may not be
L	commenced after the expiration of the period of
n	three years after the date on which the amount was
a	paid to that person or, where that person is
ri	convicted of an offence against this Division, the
to	date of the conviction of that person for the
ic	offence or, if there is more than one such
conviction, the date of the last conviction,
V	whichever is the later.

Fair Trading Act 1985

s. 27

Act No. 10201/1985

27. Power to declare certain schemes not to be pyramid

Cf. Consumer

Affairs Act	selling schemes
1972 s. 32E.
ts	(1) The Governor in Council may, by notice in
n	writing published in the Government Gazette,
e	declare that the provisions of this Division, other
m	than this section, do not apply or did not at a
u	particular time apply to a specified trading scheme
c	or to specified transactions forming part of a
o	trading scheme or to a specified trading scheme
D	promoted by a specified person.
ry	(2) A declaration under sub-section (1) may be made
ta	subject to such terms and conditions as the
n	Governor in Council determines and specifices in
e	the notice.
m	(3) The Governor in Council may, by notice in
ia	writing published in the Government Gazette,
rl	revoke a declaration made under sub-section (1).
a
P	(4) The revocation of a declaration under sub-section (3) does not affect the previous operation of the
d
n	declaration or anything done or suffered in
a	accordance with the declaration or a right,
n	privilege or obligation acquired, accrued or
o
ti
incurred under the declaration.
la	Division 3—Unsolicited Credit Cards, Goods and Services

Cf. Trade	is	28. Unsolicited prescribed cards
Practices Act
1974 s. 63A.	g
e
S. 28(1)	L	(1) A person shall not send a prescribed card to a person except—
amended by
No. 51/1987	n
s. 15(a)(i).	a

ri	(a) in pursuance of a request in writing by the person who will be under a liability to the
to	person who issued the card in respect of the
ic	use of the card; or
V

Fair Trading Act 1985

s. 28

Act No. 10201/1985

(b) in renewal or replacement of, or in substitution for—

ts S. 28(1)(b)(i)

(i) a prescribed card of the same kind

amended by

n	previously sent to the first-mentioned	No. 51/1987
e	person in pursuance of a request in	s. 15(a)(ii).
m	writing by the person who was under a
u	liability to the person who issued the
c	card previously so sent in respect of the
o	use of that card; or
D	S. 28(1)(b)(ii)
ry	(ii) a prescribed card of the same kind previously sent to the first-mentioned	amended by
No. 51/1987

s. 15(a)(ii).

ta	person and used for a purpose for which
n	it was intended to be used.
e	S. 28(2)

(2) Sub-section (1) applies only in relation to the sending of a prescribed card by or on behalf of the amended by

m No. 51/1987

ia	person who issued the card.	s. 15(b).
rl	S. 28(2A)

a (2A) A person shall not take any action that enables a

inserted by

P	person who has a credit card or a debit card to use	No. 51/1987
the card as a debit card or a credit card, as the case	s. 15(c).
d
n	may be, except in accordance with a request in
a	writing by that person.

n	(3) In this section—
o
ti	"article" includes a token, card or document;
la	"credit card" means any article of a kind
is	commonly known as a credit card or any
g	similar article intended for use in obtaining
e	cash, goods or services on credit, and
L	includes any article of a kind commonly
n	issued by persons carrying on business to
a
ri	customers or prospective customers of those
persons for use in obtaining goods or
to	services from those persons on credit;
ic
V

Fair Trading Act 1985

s. 29

Act No. 10201/1985

S. 28(3) def. of	"debit card" means an article intended for use by
"debit card"	a person in obtaining access to an account
inserted by
held by the person for the purpose of
No. 51/1987	ts
s. 15(d).	withdrawing or depositing cash or obtaining
n
e	goods or services;
S. 28(3) def. of

"prescribed card" means a credit card, a debit

"prescribed

m

card" inserted	u	card or an article that may be used as a credit
by No.	c	card and a debit card.

51/1987

s. 15(d). o

D

Cf. Trade ry 29. Right to payment for unsolicited goods etc.

Practices Act

1974 s. 64. ta (1) A person shall not, in trade or commerce, assert a

n

right to payment from another person for

e

unsolicited goods unless the first-mentioned

m

person has reasonable cause to believe that there is

ia

a right to payment.

S. 29(2)

rl

* * * * *

repealed by

a

No. 51/1987	P	2
s. 16(1).

d	(3) A person shall not, in trade or commerce, assert a
n
a	right to payment from another person for unsolicited services unless the first-mentioned
n	person has reasonable cause to believe that there is
o
ti	a right to payment.
S. 29(4)	la	* * * * *
repealed by

No. 51/1987	is	3
s. 16(1).
g

e	(5) A person shall not assert a right to payment from
L	any other person of a charge for the making in a
n	directory of an entry relating to the other person or
a	to the profession, business, trade or occupation of
ri	the other person unless the first-mentioned person
to	knows or has reasonable cause to believe that the
ic	other person has authorized the making of the
V	entry.

Fair Trading Act 1985

s. 29

Act No. 10201/1985

(6) A person is not liable to make any payment to another person, and is entitled to recover against

ts	another person any payment made by the first-
mentioned person to the other person in full or
n
e	part satisfaction of a charge for the making of an entry in a directory unless the first-mentioned
m	person has authorized the making of the entry.
u
c	(7) For the purposes of this section, a person shall be
o	taken to assert a right to a payment from another
D	person for unsolicited goods or services, or of a
ry	charge for the making of an entry in a directory, if
ta	the first-mentioned person—
n	(a) makes a demand for the payment or asserts a
e	present or prospective right to the payment;
m	(b) threatens to bring any legal proceedings with
ia
rl	a view to obtaining the payment;
a	(c) places or causes to be placed the name of the
P	other person on a list of defaulters or debtors, or threatens to do so, with a view to
d
n	obtaining the payment;
a	(d) invokes or causes to be invoked any other
n	collection procedure, or threatens to do so,
o
ti	with a view to obtaining the payment; or (e) sends any invoice or other document stating
la
is	the amount of the payment or setting out the
price of the goods or services or the charge
g
e	for the making of the entry and not stating as
L	prominently (or more prominently) that no
n	claim is made to the payment, or to payment
a
ri
of the price or charge, as the case may be.

(8) A person shall not be taken for the purposes of

to	this section to have authorized the making of an
ic	entry in a directory unless—
V

Fair Trading Act 1985

s. 29

Act No. 10201/1985

(a) a document authorizing the making of the

entry has been signed by the person or by

ts	another person authorized by that person; (b) a copy of the document has been given to the
n
e	person before the right to payment of a charge
m	for the making of the entry is asserted; and (c) the document specifies—
u
c
o	(i) the name of the directory;
D	(ii) the name and address of the person
ry	publishing the directory;
ta	(iii) particulars of the entry; and
n
e	(iv) the amount of the charge for the making of the entry or the basis on which the
m	charge is, or is to be, calculated.
ia
rl	(9) For the purposes of this section, an invoice or
a	other document purporting to have been sent by or
P	on behalf of a person shall be deemed to have
d	been sent by the person unless the contrary is
n	established.
a	(10) In a proceeding against a person in respect of a
n	contravention of this section—
o
ti	(a) in the case of a contravention constituted by
la	asserting a right to payment for unsolicited
is	goods or unsolicited services—the burden
g	lies on the person of proving that the person
e	had reasonable cause to believe that there
L	was a right to payment; or
n	(b) in the case of a contravention constituted by
a
ri	asserting a right to payment of a charge for the making of an entry in a directory—the
to	burden lies on the person of proving that the
ic	person knew or had reasonable cause to
V	believe that the person had authorized the making of the entry.

Fair Trading Act 1985

s. 30

Act No. 10201/1985

(11) In this section—

"directory" includes any publication of a similar

ts	nature to a directory but does not include a
n	newspaper published in good faith as a
e	newspaper at regular intervals or a
m	publication published, or to be published, by
u	or under the authority of the Australian
c	Telecommunications Commission;
o
D	"making", in relation to an entry in a directory, means including, or arranging for the
ry	inclusion of, the entry.
ta	Cf. Trade

30. Liability of recipient of unsolicited goods Practices Act

n	1974 s. 65.
e	(1) A person to whom unsolicited goods are supplied
m	by another person, in trade or commerce, is not
ia	liable to make any payment for the goods and is
rl	not liable for the loss of or damage to the goods
a	other than loss or damage resulting from the doing
P	by the first-mentioned person of a wilful and
d	unlawful act in relation to the goods during the
n	period specified in sub-section (4).
a	(2) Subject to sub-section (3), where a person sends,
n	in trade or commerce, unsolicited goods to a
o
ti	person—
la	(a) neither the person nor any person claiming
is	on behalf of the person is entitled after the
g	expiration of the period specified in sub-
e	section (4) to take action for the recovery of
L	the goods from the person to whom the
n	goods were sent; and
a
ri	(b) upon the expiration of that period the goods

become, by force of this section, the property

to	of the person to whom the goods were sent
ic	freed and discharged from all liens and
V	charges of any description.

Fair Trading Act 1985

s. 30

Act No. 10201/1985

(3) Sub-section (2) does not apply to or in relation to unsolicited goods sent to a person if—

ts	(a) the person has at any time during the period
n	specified in sub-section (4) unreasonably
e	refused to permit the sender or the owner of
m	the goods to take possession of the goods; (b) the sender or the owner of the goods has
u
c
o	within the period taken possession of the
D	goods; or
ry	(c) the goods were received by the person in circumstances in which the person knew, or
ta	might reasonably be expected to have
n	known, that the goods were not intended for
e	that person.
m
ia	(4) The period referred to in the foregoing sub-
rl	sections is—
a	(a) if the person who receives the unsolicited
P	goods gives notice with respect to the goods
d	to the sender in accordance with sub-section
n	(5)—
a

(i) the period of one month next following

n	the day on which the notice is given; or
o
ti	(ii) the period of three months next
la	following the day on which the person
is	received the goods—
g	whichever first expires; and
e
L	(b) in any other case—the period of three
n	months next following the day on which the
a
ri	person received the goods.

(5) A notice under sub-section (4) shall be in writing

to	and shall—
ic	(a) state the name and address of the person who
V	received the goods;

Fair Trading Act 1985

s. 30

Act No. 10201/1985

(b) state the address at which possession may be taken of the goods if it is an address other

ts	than that of the person; and
n	(c) contain a statement to the effect that the
e	goods are unsolicited goods.
m	S. 30(6)

* * * * *

u	repealed by
No. 51/1987
c	4

s. 17(1).

o

D	_______________
ry
ta
n
e
m
ia
rl
a
P
d
n
a
n
o
ti
la
is
g
e
L
n
a
ri
to
ic
V

Fair Trading Act 1985

s. 31

Act No. 10201/1985

PART III—ENFORCEMENT AND REMEDIES

ts	Division 1—General
n

Cf. Trade	e	31. Interpretation
Practices Act
1974 s. 75B.	m

u	A reference in this Part to a person involved in a
c	contravention of a provision of Part II shall be
o	read as a reference to a person who—
D	(a) has aided, abetted, counselled or procured
ry	the contravention;
ta	(b) has induced, whether by threats or promises
n	or otherwise, the contravention;
e

(c) has been in any way, directly or indirectly,

m

ia	knowingly concerned in or party to, the
rl	contravention; or
a	(d) has conspired with others to effect the
P	contravention.

Cf. Trade	d	32. Offences
Practices Act	n
1974 s. 79.	a

S. 32(1)	(1) 5A person who—
substituted by	n
No. 51/1987	o
ti	(a) contravenes; or
s. 18(1).
la	(b) aids, abets, counsels or procures a person to
is	contravene; or
g	(c) induces, or attempts to induce, a person
e	whether by threats or promises or otherwise,
L	to contravene; or
n
a	(d) is in any way, directly or indirectly,
ri	knowingly concerned in, or party to, the
to	contravention by a person of; or
ic
V

Fair Trading Act 1985

s. 32

Act No. 10201/1985

(e) conspires with others to contravene—

a provision of this Act other than section 11 or

ts	11A is guilty of an offence punishable on
n	conviction—
e

(f) in the case of a person not being a body

m

u	corporate—by a fine not exceeding 100
c	penalty units; or
o	(g) in the case of a person being a body
D	corporate—by a fine not exceeding 500
ry	penalty units.
ta	(2) Where a person is convicted of two or more
n	offences constituted by, or relating to,
e	contraventions of the same provision of this Act,
m	being contraventions that appear to a court to have
ia	been of the same nature or a substantially similar
rl	nature and to have occurred at or about the same
a	time (whether or not the person is also convicted of
P	an offence or offences constituted by, or relating to,
d	another contravention or other contraventions of
n	that provision that were of a different nature or
a	occurred at a different time), a court shall not, in
n	respect of the first-mentioned offences, impose on
o
ti	the person fines that, in the aggregate, exceed the
maximum fine that would be applicable in respect
la	of one offence by that person against that provision.
is	(3) Where—
g
e	(a) a person is convicted of an offence
L	constituted by, or relating to, a contravention
n	of a provision of this Act; and
a
ri	(b) a fine has, or fines have, previously been
to	imposed on the person by a court for an
offence or offences constituted by, or relating
ic	to, another contravention or other
V	contraventions of the same provision, being a contravention that, or contraventions each of

Fair Trading Act 1985

s. 32

Act No. 10201/1985

which, appears to a court to have been of the

same nature to, and to have occurred at or

ts	about the same time as the first-mentioned
contravention (whether or not a fine has, or
n
e	fines have, also previously been imposed on the person for an offence or offences
m	constituted by, or relating to, a contravention
u
c	or contraventions of that provision that were
o	of a different nature or occurred at a different
D	time)—
ry	a court shall not, in respect of the offence
ta	mentioned in paragraph (a), impose on the person
a fine that exceeds the amount (if any) by which
n
e	the maximum fine applicable in respect of that offence under sub-section (1) is greater than the
m	amount of the fine, or the sum of the amounts of
ia	the fines, first referred to in paragraph (b).
S. 32(4)	rl

inserted by	a	(4) A prosecution for an offence against sub-section
No. 51/1987	P	(1) may be commenced within three years after the
s. 18(2).
d	commission of the offence.
S. 32(5)	n	(5) In proceedings under this section against a person
inserted by	a

No. 51/1987	for contravening a provision of this Act, a court
s. 18(2).	n	may, if the court is satisfied that the person
o
ti	charged is guilty of the offence—
la	(a) grant an injunction under section 34 against
is	the person in relation to—
g	(i) the conduct that constitutes the
e	contravention; or
L

(ii) other conduct of that kind; or

n
a

ri (b) make an order under section 35 in relation to

the contravention.

S. 32(6)	to	(6) The aggregate of—
ic

(a) the fine (if any) imposed on a person under sub-section (1) in respect of an offence; and

V

Fair Trading Act 1985

s. 33

Act No. 10201/1985

(b) the amount which the person would or would be likely to be required to spend in

ts	complying with an order made under sub-
section 5(b) in respect of that offence—
n
e	shall not exceed the maximum fine that would be
m	applicable to that person in respect of that offence.
u
c	Division 2—Powers of County Court
o
D	33. Definition
ry	In this Division, "Court" means the County
ta	Court.

n	34. Powers of Court	Cf. Trade Practices Act
e	1974 s. 80.

(1) The Court may, on the application of—

m

ia	(a) the Minister;
rl	(b) the Director; or
a
P	(c) any other person—
d	grant an injunction restraining a person from
n	engaging in conduct that constitutes or would
a	constitute—
n	(d) a contravention of a provision of Part II;
o
ti	(e) attempting to contravene such a provision;
la	(f) aiding, abetting, counselling or procuring a
is	person to contravene such a provision;
g
e	(g) inducing, or attempting to induce, a person,
L	whether by threats, promises or otherwise, to
n	contravene such a provision;
a
ri	(h) being in any way, directly or indirectly, knowingly concerned in, or party to, the
to	contravention by a person of such a
ic	provision; or
V

Fair Trading Act 1985

s. 34

Act No. 10201/1985

(i) conspiring with others to contravene such a

provision.

S. 34(1A)	ts	(1A) Where an application for an injunction under sub-
inserted by
No. 51/1987	n	section (1) has been made, whether before or after
s. 19.	e	the commencement of this sub-section, the Court
m	may, if the Court determines it to be appropriate,
u	grant an injunction by consent of all the parties to
c	the proceedings, whether or not the Court is
o	satisfied that a person has engaged, or is likely to
D	engage in conduct of a kind mentioned in sub-
ry	section (1).

ta	(2) Where in the opinion of the Court it is desirable to
n	do so, the Court may grant an interim injunction
e	pending determination of an application under
m	sub-section (1).
ia	(3) The Court may rescind or vary an injunction
rl	granted under sub-section (1) or (2).
a
P	(4) Where an application is made to the Court for the grant of an injunction restraining a person from
d
n	engaging in conduct of a particular kind, being
a	conduct referred to in sub-section (1), the Court
n	may—
o
ti	(a) if it is satisfied that the person has engaged

in conduct of that kind—grant an injunction

la	under sub-section (1) restraining the person
is	from engaging in conduct of that kind; or
g
e	(b) if in the opinion of the Court it is desirable to
L	do so—grant an interim injunction under
n	sub-section (2) restraining the person from
a	engaging in conduct of that kind—
ri	whether or not it appears to the Court that the
to	person intends to engage again, or to continue to
ic	engage, in conduct of that kind.
V

Fair Trading Act 1985

s. 34

Act No. 10201/1985

(5) Where an application is made to the Court for the grant of an injunction restraining a person from

ts	engaging in conduct of a particular kind, being
n	conduct referred to in sub-section (1), the Court
e	may—
m	(a) if it appears to the Court that, in the event
u
c	that an injunction is not granted, it is likely
o	that the person will engage in conduct of that
D	kind—grant an injunction under sub-section (1) restraining the person from engaging in
ry	conduct of that kind; or
ta	(b) if in the opinion of the Court it is desirable to
n	do so—grant an interim injunction under
e	sub-section (2) restraining the person from
m	engaging in conduct of that kind—
ia
rl	whether or not the person has previously engaged
a	in conduct of that kind and whether or not there is
P	an imminent danger of substantial damage to any person if the first-mentioned person engages in
d
n	conduct of that kind.
a	(6) Where the Minister or the Director makes an
n	application to the Court for the grant of an
o
ti	injunction under this section, the Court shall not
require the applicant or any other person, as a
la	condition of granting an interim injunction, to give
is	any undertakings as to damages.
g
e	(7) Where—
L	(a) in a case to which sub-section (6) does not
n	apply, the Court would, but for this sub-
a
ri	section, require a person to give an
undertaking as to damages or costs; and
to
ic
V

Fair Trading Act 1985

s. 35

Act No. 10201/1985

(b) the Minister or the Director gives the undertaking—

ts	the Court shall accept the undertaking by the
n	Minister or the Director and shall not require a
e	further undertaking from any other person.
Cf. Trade	m

35. Special powers of Court

Practices Act

u

1974 s. 80A.	c
S. 35(1)	o

(1) Where, on the application of the Minister or the

amended by	D
No. 51/1987 Director, the Court is satisfied that a person has
ry
s. 20. engaged in conduct constituting a contravention of
ta	a provision of Part II other than section 11A, the
n	Court may make either or both of the following
e	orders:
m	(a) An order requiring that person or a person
ia	involved in the contravention to disclose to
rl	the public, to a particular person or to
a	persons included in a particular class of
P	persons, in such manner as is specified in the
d	order, such information or information of
n	such a kind as is so specified, being
a	information that is in the possession of the
n	person to whom the order is directed or to
o
ti	which that last-mentioned person has access; (b) An order requiring that person or a person
la
is	involved in the contravention to publish, at
g	the expense of the person, in a manner and at
e	times specified in the order, advertisements
L	the terms of which are specified in, or are to
n	be determined in accordance with, the order.
a
ri	(2) Where, on an application made under sub-section (1), the Court is satisfied that a contravention of a
to	provision of Part II has been committed, the Court
ic	shall not, in respect of that contravention, make an
V	order or orders under sub-section (1) that the Court considers would, or would be likely to,

Fair Trading Act 1985

s. 35

Act No. 10201/1985

require the expenditure by the person or persons to

whom the order or orders is or are directed of an

ts	amount that exceeds, or of amounts that, in the
aggregate, exceed, $50 000.
n
e	(3) Where, on an application made under sub-section
m	(1), the Court is satisfied that a person has
u	committed, or been involved in, two or more
c	contraventions of the same provision of Part II,
o	being contraventions that appear to the Court to
D	have been of the same nature or a substantially
ry	similar nature and to have occurred at or about the
ta	same time (whether or not the person has also
committed, or been involved in, another
n
e	contravention or other contraventions of that provision that was or were of a different nature or
m
ia	occurred at a different time), the Court shall not,
rl	in respect of the first-mentioned contraventions,
make an order or orders under sub-section (1) that
a	the Court considers would, or would be likely to,
P	require the expenditure by the person or persons to
d	whom the order or orders is or are directed of an
n
a	amount that exceeds, or of amounts that, in the aggregate, exceed, $50 000.
n
o
ti

(4) Where—

(a) on an application made under sub-section

la	(1), the Court is satisfied that a person has
is	committed, or been involved in, a
g	contravention or contraventions of a
e
L	provision of Part II; and
n	(b) an order has, or orders have, previously been
a	made under sub-section (1) against the
ri	person who committed, or against a person
to	who was involved in, that contravention or
ic	those contraventions in respect of another
contravention or other contraventions of the
V	same provision, being a contravention which,

Fair Trading Act 1985

s. 35A

Act No. 10201/1985

or contraventions each of which, appears to

the Court to have been of the same nature as,

ts	or of a substantially similar nature to, and tohave occurred at or about the same time as,
n
e	the first-mentioned contravention or contraventions (whether or not an order has,
m	or orders have, also previously been made
u
c	under sub-section (1) against any of those
o	persons in respect of another contravention
D	or other contraventions of that provision that was or were of a different nature or occurred
ry	at a different time)—
ta	the Court shall not, in respect of the contravention
n
e	or contraventions mentioned in paragraph (a), make an order or orders under sub-section (1) that
m
ia	the Court considers would be likely to require the
rl	expenditure by the person or persons to whom theorder or orders is or are directed of an amount that
a	exceeds, or of amounts that, in the aggregate,
P	exceed, the amount (if any) by which $50 000 is
d	greater than the amount, or the sum of the
n
a	amounts that has or have been or that the Court considers would be or be likely to be, expended in
n	accordance with the previous order or previous
o
ti	orders first mentioned in paragraph (b).

Cf. Trade	la	35A. Power of Court to prohibit payment or transfer of
Practices Act
is

1974 s. 87A.	money or other property
S. 35A
g
inserted by	(1) Where—
No. 51/1987	e

s. 21.	L	(a) proceedings have been commenced against a
n	person for an offence against section 32; or (b) an application has been made under section
a

ri	34 for an injunction against a person in
to	relation to a contravention of a provision of
ic	Part II; or
V

Fair Trading Act 1985

s. 35A

Act No. 10201/1985

(c) a proceeding has been commenced under section 37(1) against a person in relation to a	S. 35A(1)(c) amended by
No. 19/1989

ts	contravention of a provision of Part II; or	s. 16(Sch.
item 22.1).

n	(d) an application for an order under section
e	41(2) or (3) has been or may be made against
m	a person in relation to a contravention of a
u	provision of Part II—
c
o	the Court may, on the application of the Minister
D	or the Director, make an order or orders mentioned in sub-section (2) if the Court is
ry	satisfied that—
ta	(e) it is necessary or desirable to do so for the
n	purpose of preserving money or other property
e	held by or on behalf of a person referred to in
m	paragraph (a), (b), (c) or (d), as the case may
ia	be (in this section referred to as the "relevant
rl	person"), where the relevant person is liable or
a	may become liable under this Act to pay
P	money by way of a fine, damages,
d	compensation, refund or otherwise or to
n	transfer, sell or refund other property; and
a

(f) it will not unduly prejudice the rights and

n

interests of any other person.

o
ti

(2) The orders referred to in sub-section (1) are— (a) an order prohibiting, either absolutely or

la

is	subject to conditions, a person who is
g
e	indebted to the relevant person or to an
L	associate of the relevant person from making
n	a payment in total or partial discharge of the
a	debt to, or to another person at the direction
ri	or request of, the person to whom the debt is
to	owed; and
ic	(b) an order prohibiting either absolutely or
V	subject to conditions, a person who is holding money or other property on behalf of

Fair Trading Act 1985

s. 35A

Act No. 10201/1985

the relevant person or on behalf of an

associate of the relevant person from paying

ts	all or any of the money, or transferring, or
otherwise parting with possession of, the
n
e	other property, to, or to another person at the direction or request of, the person on whose
m	behalf the money or other property is held;
u
c	and
o	(c) an order prohibiting, either absolutely or
D	subject to conditions, the taking or sending
ry	by any person of money of the relevant
ta	person or of an associate of the relevantperson to a place outside Victoria; and
n
e	(d) an order prohibiting, either absolutely or
m	subject to conditions, the taking, sending or
ia	transfer by any person of other property of
rl	the relevant person or of an associate of the
a	relevant person to a place outside Victoria;
P	and
d	(e) an order appointing, where the relevant
n	person is a natural person, a receiver or
a	trustee of the property or of part of the
n	property of the relevant person with such
o
ti	powers as are specified in the order.
la	(3) Subject to sub-section (4), an order under this
is	section may be expressed to operate—
g	(a) for a period specified in the order; or
e
L	(b) until proceedings under any other provision
n	of this Part in relation to which the order was
a
ri
made have been concluded.

(4) An order under this section made on an

to	application ex parte shall not be expressed to
ic	operate for a period exceeding 30 days.
V

Fair Trading Act 1985

s. 37

Act No. 10201/1985

(5) A person who contravenes or fails to comply with an order by the Court under this section that is

ts	applicable to the person is guilty of an offence
n	punishable on conviction—
e	(a) in the case of a person not being a body
m	corporate—by a fine not exceeding 100
u
c	penalty units; or
o	(b) in the case of a person being a body
D	corporate—by a fine not exceeding 500
ry	penalty units.
ta	(6) Nothing in this section affects the powers that the
n	Court has apart from this section.
e	(7) A reference in this section to a person who is an
m	associate of a relevant person is a reference to—
ia
rl	(a) a person holding money or other property on
a	behalf of the relevant person; or
P	(b) if the relevant person is a body corporate—a
d	wholly owned subsidiary of the relevant
n	person.
a	(8) In sub-section (7), the question whether a body
n	corporate is a subsidiary of another body corporate
o
ti	shall be determined in accordance with the
la	Companies (Victoria) Code.
is	Division 3—General Power of Courts
g
e	S. 36

* * * * *

L	repealed by
No. 51/1987
n	s. 22.
a

ri	37. Actions for damages	Cf. Trade Practices Act
to	1974 s. 82.

ic (1) A person who suffers loss or damage by conduct

of another person that was done in contravention

V of a provision of Part II may recover the amount

Fair Trading Act 1985

s. 38

Act No. 10201/1985

of the loss or damage by proceeding against that
other person or against any person involved in the

contravention.

S. 37(2)

ts

amended by n (2) A proceeding under sub-section (1) may be

e

No. 19/1989	commenced at any time within three years after
s. 16(Sch.	the date on which the cause of action accrued.
item 22.3).	m

u

S. 37(3) c (3) Sub-section (1) does not apply in relation to

inserted by	o
No. 51/1987	conduct done in contravention of section 11A.
s. 23.	D

Cf. Trade ry 38. Findings in proceedings to be evidence

Practices Act

1974 s. 83. ta In a proceeding against a person under section 37

n

or in an application under sub-section 41(2) for an

e

order against a person, a finding of any fact by a

m

court made in proceedings under section 34 or 35,

ia

or for an offence against section 32, in which that

rl

person has been found to have contravened, or to

a

have been involved in a contravention of, a

P

provision of Part II is prima facie evidence of that

d

fact and the finding may be proved by production

n

of a document under the seal of the court from

a

which the finding appears.

Cf. Trade

n

39. Conduct by directors, servants or agents

Practices Act

o

1974 s. 84. ti (1) Where, in a proceeding under this Act in respect

S. 39	la
substituted by	of conduct engaged in by a body corporate, being
No. 51/1987	is
s. 24.	conduct in relation to which a provision of Part II

g

applies, it is necessary to establish the state of

e

mind of the body corporate, it is sufficient to show

L

that a director, servant or agent of the body

n

corporate, being a director, servant or agent by

a

ri

whom the conduct was engaged in within the
scope of the person's actual or apparent authority,

to

had that state of mind.

ic

V

Fair Trading Act 1985

s. 39

Act No. 10201/1985

(2) Any conduct engaged in or on behalf of a body

corporate—

ts	(a) by a director, servant or agent of the body
n	corporate within the scope of the person's
e	actual or apparent authority; or
m
u	(b) by any other person at the direction or with
c	the consent or agreement (whether express or
o	implied) of a director, servant or agent of the
D	body corporate, where the giving of the
ry	direction, consent or agreement is within the scope of the actual or apparent authority of
ta	the director, servant or agent—
n
e	shall be deemed, for the purposes of this Act, to
m	have been engaged in also by the body corporate. (3) Where, in a proceeding under this Act in respect
ia
rl	of conduct engaged in by a person other than a
a	body corporate, being conduct in relation to which
P	a provision of Part II applies, it is necessary to
d	establish the state of mind of the person, it is
n	sufficient to show that a servant or agent of the
a	person, being a servant or agent by whom the
n	conduct was engaged in within the scope of the
o
ti	servant's or agent's actual or apparent authority,
had that state of mind.
la
is	(4) Conduct engaged in on behalf of a person other

than a body corporate—

g

e	(a) by a servant or agent of the person within the
L	scope of the actual or apparent authority of
n	the servant or agent; or
a
ri	(b) by any other person at the direction or with
to	the consent or agreement (whether express or
implied) of a servant or agent of the first-
ic	mentioned person, where the giving of the
V

Fair Trading Act 1985

s. 40

Act No. 10201/1985

direction, consent or agreement is within the

scope of the actual or apparent authority of

ts	the servant or agent—
n	shall be deemed, for the purposes of this Act, to
e	have been engaged in also by the first-mentioned
m	person.
u	(5) A reference in this section to the state of mind of a
c
o	person includes a reference to the knowledge,
D	intention, opinion, belief or purpose of the person and the person's reasons for the person's intention,
ry	opinion, belief or purpose.

Cf. Trade	ta	40. Defences
Practices Act
1974	n
s. 85(1)(c).	e	(1) Subject to sub-section (2), in a prosecution under

S. 40	this Act in relation to a contravention of a
substituted by	m
No. 51/1987	ia	provision of Part II, it is a defence if the defendant
rl
s. 25.	establishes—
a	(a) that the contravention in respect of which the
P	proceeding was instituted was due to
d	reasonable mistake; or
n
a	(b) that the contravention in respect of which the proceeding was instituted was due to
n
o	reasonable reliance on information supplied
ti	by another person; or
la	(c) that—
is	(i) the contravention in respect of which
g
e	the proceeding was instituted was due
L	to the act or default of another person, to an accident or to some other cause
n	beyond the defendant's control; and
a
ri	(ii) the defendant took reasonable
to	precautions and exercised due diligence
ic	to avoid the contravention.
V

Fair Trading Act 1985

s. 40

Act No. 10201/1985

(2) In sub-section (1)(b) and (c), "another person" does not include a person who was—

ts	(a) a servant or agent of the defendant; or
n
e	(b) in the case of a defendant being a body
m	corporate, a director, servant or agent of the
u	defendant—
c
o	at the time when the contravention occurred. (3) If a defence provided by sub-section (1) involves
D
ry	an allegation that a contravention was due to
reliance on information supplied by another
ta	person or to the act or default of another person,
n	the defendant is not, without leave of the court,
e	entitled to rely on that defence unless the
m	defendant has, not later than seven days before the
ia	day on which the hearing of the proceeding
rl	commences, served on the person by whom the
a	proceeding was instituted a notice in writing
P	giving such information that would identify or
d	assist in the identification of the other person as
n	was then in the defendant's possession.
a

(4) In a proceeding under this Act in relation to a

n

o	contravention of a provision of Part II committed
ti	by the publication of an advertisement, it is a
la	defence if the defendant establishes that the
is	defendant is a person whose business it is topublish or arrange for the publication of
g
e	advertisements and that the defendant received the
L	advertisement for publication in the ordinary
n	course of business and did not know and had no
a	reason to suspect that its publication would
ri	amount to a contravention of a provision of that
to	Part.
ic
V

Fair Trading Act 1985

s. 41

Act No. 10201/1985

Cf. Trade	41. Other orders
Practices Act 1974 s. 87.

S. 41(1)	ts	(1) Where, in a proceeding instituted under, or for an
amended by
n

No. 51/1987	offence against, this Act, a court finds that a
s. 26(a).	e	person who is a party to the proceeding has
m	suffered, or is likely to suffer, loss or damage by
u	conduct of another person that was engaged in
c	contravention of a provision of Part II, the court
o	may, whether or not it grants an injunction under
D	section 34 or makes an order under section 35 or
ry	36, make such order or orders as it thinks
ta	appropriate against the person who engaged in the
n	conduct or a person who was involved in the
e	contravention (including all or any of the orders
m	mentioned in sub-section (4) of this section) if the
ia	court considers that the order or orders concerned
rl	will compensate the first-mentioned person in
a	whole or in part for the loss or damage or will
P	prevent or reduce the loss or damage.
S. 41(2)

amended by	d	(2) Without limiting the generality of section 34, a
No. 51/1987	n	court may, on the application of a person who has
s. 26(b).	a	suffered, or is likely to suffer, loss or damage by
n	conduct of another person that was engaged in in
o	contravention of a provision of Part II make such
ti	order or orders as the court thinks appropriate
la	against the person who engaged in the conduct or
is	a person who was involved in the contravention
g	(including all or any of the orders mentioned in
e	sub-section (4)) if the court considers that the
L	order or orders concerned will compensate the
n	person who made the application, or the person or
a
ri	any of the persons on whose behalf the application
was made, in whole or in part for the loss or
to	damage, or will prevent or reduce the loss or
ic	damage suffered, or likely to be suffered, by the
V	person.

Fair Trading Act 1985

s. 41

Act No. 10201/1985

(3) Where, in a proceeding instituted for an offence against section 32 or instituted by the Minister or

ts	the Director under section 34 a person is found tohave engaged in conduct in contravention of a
n
e	provision of Part II, the Minister or the Director may make an application under sub-section (2) on
m	behalf of one or more persons identified in the
u
c	application who have suffered, or are likely to
o	suffer, loss or damage by such conduct, but the
D	Minister or the Director shall not make such an application except with the consent in writing
ry	given before the application is made by the
ta	person, or by each of the persons, on whose behalf
n	the application is made.
e	S. 41(3A)

(3A) An application may be made under sub-section (2) in relation to a contravention of Part II

m	inserted by
No. 51/1987
ia	s. 26(c).
rl	notwithstanding that a proceeding has not been
instituted under another provision of this Part in
a	relation to that contravention.
P

S. 41(3B)

(3B) An application under sub-section (2) may be

d inserted by

n	commenced—	No. 51/1987
a	s. 26(c).

(a) in the case of conduct in contravention of

n	section 11A—at any time within two years
o
ti	after the date on which the cause of action
la	accrued; or
is	(b) in any other case—at any time within three
g	years after the date on which the cause of
e	action accrued.
L	S. 41(3C)

(3C) For the purposes of determining whether to make an order under this section in relation to a inserted by

n	No. 51/1987
a

ri	contravention of section 11A, a court may have	s. 26(c).
regard to the conduct of parties to the proceeding
to	since the contravention occurred.
ic
V

Fair Trading Act 1985

s. 41

Act No. 10201/1985

S. 41(3D)	(3D) A court shall not make an order under this section
inserted by
No. 51/1987	in relation to a contract of insurance to which the
s. 26(c).	ts	Insurance Contracts Act 1984 of the
Commonwealth applies.
n
e	(4) The orders referred to in sub-sections (1) and (2)
m	are—
u	(a) an order declaring the whole or any part of a
c
o	contract made between the person who
D	suffered, or is likely to suffer, the loss or damage and the person who engaged in the
ry	conduct or a person who was involved in the
ta	contravention constituted by the conduct, or
n	of a collateral arrangement relating to such a
e	contract, to be void and, if the court thinks
m	fit, to have been void ab initio or at all times
ia	on and after such date before the date on
rl	which the order is made as is specified in the
a	order;
P	(b) an order varying such a contract or
d	arrangement in such manner as is specified
n	in the order and, if the court thinks fit,
a	declaring the contract or arrangement to have
n	had effect as so varied on and after such date
o
ti	before the date on which the order is made as
la	is so specified;
is	(c) an order refusing to enforce any or all of the
g	provisions of such a contract;
e	(d) an order directing the person who engaged in
L	the conduct or a person who was involved in
n	the contravention constituted by the conduct
a
ri	to refund money or return property to the
to	person who suffered the loss or damage; (e) an order directing the person who engaged in
ic	the conduct or a person who was involved in
V	the contravention constituted by the conduct

Fair Trading Act 1985

s. 41A

Act No. 10201/1985

to pay to the person who suffered the loss or

damage the amount of the loss or damage;

ts	(f) an order directing the person who engaged in
n	the conduct or a person who was involved in
e	the contravention constituted by the conduct,
m	at the expense of the person, to repair, or
u	provide parts for, goods that had been
c	supplied by the person who engaged in the
o	conduct to the person who suffered, or is
D	likely to suffer, the loss or damage;
ry	(g) an order directing the person who engaged in
ta	the conduct or a person who was involved in
n	the contravention constituted by the conduct,
e	at the expense of the person, to supply
m	specified services to the person who
ia	suffered, or is likely to suffer, the loss or
rl	damage; and
a	(h) an order in relation to an instrument creating
P	or transferring an interest in land, directing
d	the person who engaged in the conduct or a
n	person who was involved in the
a	contravention constituted by the conduct to
n	execute an instrument that—
o
ti	(i) varies, or has the effect of varying, the
la	first-mentioned instrument; or
is	(ii) terminates or otherwise affects, or has
g	the effect of terminating or otherwise
e	affecting, the operation or effect of the
L	first-mentioned instrument.
n
a	(5) In sub-section (4)(h), "interest", in relation to
ri	land, has the same meaning as in section 13.
to	S. 41A

41A. Appeals

ic	(1) If a person is aggrieved by the making of any
V	order under section 32 or 41 against that person in

Fair Trading Act 1985

s. 42

Act No. 10201/1985

criminal proceedings, the person may appeal

against the order to the County Court.

ts	(2) If—
n	(a) an order under section 32 or 41 is made in
e	criminal proceedings; and
m
u	(b) the Director of Public Prosecutions considers
c	that a different order should have been made;
o	and
D	(c) the Director of Public Prosecutions is
ry	satisfied that an appeal should be brought in
ta	the public interest—
n	the Director of Public Prosecutions may appeal
e	against the order to the County Court.
m
ia	Division 4—Powers of Inspectors
Cf. Consumer	rl

Affairs Act	a	42. Powers of inspectors
1972 s. 64.	P	(1) An inspector at any reasonable time by day or

d	night may—
n
a	(a) with such assistance as the inspector requires
n	enter any premises or place which the
o	inspector considers it necessary to enter in
ti	the administration of this Act;
la	(b) examine any part of such premises and any
is	goods therein;
g	(c) on payment or tender of a reasonable price,
e
L	demand select and obtain any goods or any
n	sample of any goods which are in or on such
a
ri
premises;

(d) examine with respect to any matters under

to	this Act any person found in such premises;
ic	(e) examine with respect to any matters under
V	this Act any documents found in such

Fair Trading Act 1985

s. 42

Act No. 10201/1985

premises and take copies or extracts

therefrom;

ts	(f) with respect to any matter under this Act,
n	require a person—
e	(i) to give whether orally or in writing such
m	information as may be required;
u
c	(ii) to answer whether orally or in writing
o	any question; and
D	(iii) to produce a document specified in the
ry	request; and
ta	(g) exercise such other powers as are necessary
n	for carrying this Act into effect.
e

(2) Where under sub-section (1), an inspector requires

m

ia	information, an answer to a question or the
rl	production of a document from or by a person and
a	that person, without reasonable excuse—
P	(a) refuses or fails to reply to the request; or
d	(b) furnishes information that is false or
n
a	misleading in a material particular—
n	that person is guilty of an offence.
o
ti	(3) It is a defence to proceedings for an offence under

this section if the defendant proves that no

la	information was provided of the requirement to
is	reply to the request.
g
e	(4) In proceedings for an offence under this section, a
L	request to a person for information, an answer to a
n	question or production of a document sent in
a	writing by prepaid certified mail to the address of
ri	the place of residence or business of that person
to	last known to the person sending the request or, if
ic	the first-mentioned person is a body corporate, tothe address of the registered office of the body
V	corporate, shall in the absence of evidence to the

Fair Trading Act 1985

s. 43

Act No. 10201/1985

contrary be deemed to have been duly made to the first-mentioned person and to have been received

ts	by that person at the time at which it would havebeen delivered in the ordinary course through the
n
e	certified mail service.
Cf. Consumer

43. Facilitation of inspection

Affairs Act	m
1972 s. 65. u (1) The occupier of any premises or place and the
c
o	agents and employees of the occupier shall
D	provide an inspector with any facilities that are necessary or desirable to enable an entry or
ry	inspection to be made to the premises or place or
ta	to exercise or perform any other power function or
n	duty under this Act.
e	(2) A person who—
m
ia	(a) wilfully delays an inspector in the exercise of
rl	any power under this Act;
a	(b) who assaults or directly or indirectly
P	intimidates or threatens or attempts to
d	intimidate or threaten an inspector;
n
a	(c) fails to comply with a requisition of an inspector made under any such power; or
n
o	(d) conceals or prevents any person from
ti	appearing before or being examined by an
la	inspector or attempts so to conceal or prevent
is	a person—
g
e	shall be guilty of an offence.
L	(3) Every person who—
n	(a) obstructs hinders impedes resists or opposes;
a
ri	or
to	(b) refuses admission to any premises to—
ic	any inspector or person assisting an inspector or
V	other persons in the performance of anything which such inspector or other person is lawfully

Fair Trading Act 1985

s. 44

Act No. 10201/1985

doing under this Act and the occupier of any

premises where any such obstructing hindering

ts	impeding resisting opposing or refusing occursshall be guilty of an offence.
n
e	Division 5—Miscellaneous
m
u	44. Double jeopardy
c
o	Where an act or omission by a person is an
D	offence against this Act and is also an offence
ry	against a corresponding Act of the
Commonwealth or of another State or of a
ta	Territory, the person may be prosecuted and
n	convicted under this Act in respect of that act or
e	omission notwithstanding that the person has been
m	convicted, in respect of that act or omission under
ia	a corresponding Act of the Commonwealth or of
rl	another State or of a Territory, but nothing in this
a	Act renders a person liable to be punished twice in
P	respect of the same act or omission.
d	45. Regulations
n
a	The Governor in Council may make regulations
n	for or with respect to prescribing any matter or
o	thing authorized or required to be prescribed for
ti	the purposes of this Act.
la
is	Division 6—Repeals and Amendments
g	S. 46
e	46. Repeal of parts of Consumer Affairs Act 1972

amended by

L No. 51/1987

Section 13 other than sub-sections (2B), (2C), (3) s. 28.

n	and (10) and sections 21, 22, 23, 24, 25, 26, 27,
a
ri	28, 29, 30, 31, 32A, 32B, 32C, 32D, 32E and 32F of the Consumer Affairs Act 1972 are hereby
to	repealed.
ic
V

Fair Trading Act 1985

s. 47

Act No. 10201/1985

47. Consequential amendment

At the end of the Schedule to the Ministry of

ts	Consumer Affairs Act 1973 there shall be
n	inserted the following:
e
m	"Fair Trading Act 1985".
u
c
o
D
ry
ta
n
e
m
ia
rl
a
P
d
n
a
n
o
ti
la
is
g
e
L
n
a
ri
to
ic
V

Fair Trading Act 1985

Notes

Act No. 10201/1985

NOTES

ts	1. General Information
n	The Fair Trading Act 1985 was assented to on 29 October 1985 and came
e	into operation as follows:
m	All of Act (except s. 46) on 1.4.86: Government Gazette 12.3.86 p. 589;
u	s. 46 on 3.4.88: Government Gazette 30.3.88 p. 752.
c
o
D
ry
ta
n
e
m
ia
rl
a
P
d
n
a
n
o
ti
la
is
g
e
L
n
a
ri
to
ic
V

Fair Trading Act 1985

Notes

Act No. 10201/1985

2.  Table of Amendments

This Version incorporates amendments made to the Fair Trading Act 1985

ts	by Acts and subordinate instruments.
n	–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
e	Fair Trading (Amendment) Act 1987, No. 51/1987

m	Assent Date:	29.9.87
u	Commencement Date:	1.12.87: Government Gazette 18.11.87 p. 3072
c	Current State:

o County Court (Amendment) Act 1989, No. 19/1989

D	Assent Date:	16.5.89
Commencement Date:	1.8.89: Government Gazette 26.7.89 p. 1858
ry	Current State:

ta	–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
n
e
m
ia
rl
a
P
d
n
a
n
o
ti
la
is
g
e
L
n
a
ri
to
ic
V

Fair Trading Act 1985

Notes

Act No. 10201/1985

3.  Explanatory Details

ts	1
S. 20: Section 12(2) of the Fair Trading (Amendment) Act 1987,
n	No. 51/1987 provides as follows:
e	(2) The amendment made by sub-section (1) applies
m	only in relation to contracts made after the
u	commencement of this section.
c	2
o	S. 29(2): Section 16(2) of the Fair Trading (Amendment) Act 1987,
D	No. 51/1987 provides as follows:
ry	(2) The amendment made by sub-section (1) applies only in relation to the supply of goods or services
ta	after the commencement of this section.
n	3
e	S. 29(4)(repealed): See note 2.
4
m	S. 30(6)(repealed): Section 17(2) of the Fair Trading (Amendment)
ia	Act 1987, No. 51/1987 provides as follows:
rl	(2) The amendment made by sub-section (1) applies
a	only in relation to the supply of goods after the
P	commencement of this section.
d	5
n	S. 32(1): Section 18(3) of the Fair Trading (Amendment) Act 1987,
a	No. 51/1987 provides as follows:
n	(3) Notwithstanding the amendment made by sub-
o	section (1), the provisions of section 32 of the
ti	Principal Act continue to apply, after the
la	commencement of this section, to and in relation
is	to offences committed before that commencement
g	as if that amendment had not been made.
e
L
n
a
ri
to
ic
V